Chapter 10 – The Judiciary

Chapter 10 – The Judiciary

Today it is perceived as having too much power
Political nature of courts

Pres nominates judges to federal courts to advance personal politics, senate confirms or declines nominees
Selection process and process by which cases ultimately get heard are often political
Interests groups seek out food test cases to advance their policy positions

Chapter Issues:

1. Constitution and creation of the national judiciary

2. Judiciary Act of 1789 and creation of federal judicial system

3. American legal system

4. Federal court system

5. How federal court judges are selected

6. Supreme Court today

7. How justices vote and make decisions

8. Judicial policy making and implementation

9. Continuity and change

Constitution and the Creation of the National Judiciary (349)

Framers believed that a judicial branch posed little threat of tyranny, took little time writing Article III

Anti-federalists objected to a judiciary w/ life tenure and the ability to interpret the “supreme law of the land”

Article III, Section 1, “The Judicial Power of the United States…in one supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.”
There is debate over whether or not the Court has the power of judicial review (power of the courts to review acts of other branches of government and the states)

Marbury v. Madison (1803) – Resolution regarding acts of the national government
Martin v. Hunter’s Lessee (1816) – Resolution regarding state law

Framers agreed on life tenure with “good behavior” so judges were not subject to whims of politics
Judicial Power of the United State Supreme Court (350, table 10.1)
Checks on the power of the judiciary

Congress has the authority to alter the Court’s jurisdiction (ability to hear certain kinds of cases)
Congress can propose constitutional amendments that effectively reverse judicial decisions
Congress can impeach and remove federal judges
It is the President who (w/advice, consent of Congress) appoints all federal judges

Judiciary Act of 1789 and Creation of Federal Judicial System (351)

Judiciary Act of 1789 – Established the three-tiered structure of the federal court system

Federal District Courts à Circuit Courts (Court of Appeals today) à Supreme Court
Supreme Court of 6 (chief justice + 5)

First Court

Justices met in first public session NYC 1790
First chief justice – John Jay
Chisholm v. Georgia (1793)
Lacked “energy, weight, and dignity” as well as “public confidence and respect” – John Jay

Chisholm v. Georgia (1793)

Article III extended federal judicial power to controversies “between a State and Citizens of another State”
Hamilton / Madison didn’t think one would interpret this so that a citizen of one state could sue another state
A citizen sued another state and Justice Wilson denounced the “haughty notions of state independence, state sovereignty, and state supremacy”
Resulted in 11^th amendment (1798) – made it illegal for a citizen of one state to sue another state

The Marshall Court (1801-1835) (353)

Marshall – ardent, innovative federalist; led Court to issue rulings that made the Court an equal branch of gov by:

Discontinued the practice of seriatim (“in a series” – Latin) – instead of Justices presenting their opinions one at a time in order, the Court had an opinion
Marbury v. Madison (1803) – judicial review
Fletcher v. Peck (1810), Martin v. Hunter’s Lessee (1816), Cohens v. VA (1821) – power to declare state laws invalid
McCulloch v. Maryland (1819) – est. supremacy of federal gov and Congress over state governments

Asserting Judicial Review: Marbury v. Madison (353)

· 1^st asserted the power of judicial review in finding the statute extending the Court’s original jurisdiction was unconstitutional

In final hours of presidency, Adams appointed Marbury a justice but his SecState failed to deliver the commission
Marbury asked Madison, Jefferson’s SecState, for the commission
Under orders from Jefferson (who was irate over last min appointments), Madison refused to give the commission
Marbury and three other Adams appointees filed a writ of mandamus (a legal motion)
Jefferson threatened to ignore any order from the Court
Marshall ruled that although Marbury and others were entitled to their appointments, the Court lacked the power to issue writs and that the Judicial Act of 1789 granted this power unconstitutionally
Immediately – Denied power à (long term) Established judicial review principle (over acts of Congress, the executive branch, and the states)

The American Legal System (355)

Dual system (federal court system and judicial systems of 50 states)
Three tiered system

Trial courts – court of original jurisdiction where a case begins
Appellate courts – Court than generally reviews only findings of law made by lower courts

Jurisdiction (355)

Jurisdiction – Authority vested in a particular court to hear and decide the issues in any particular case

For federal courts, controlled by Constitution and by statute
Conferred based on issues, money involved in a dispute, type of offense

Original jurisdiction – jurisdiction of courts that hear a case first, usually in a trial; courts determines the facts
Appellate jurisdiction – power vested in an appellate court to review and/or revise the decision of a lower court

Do not review the factual record
Review legal procedures to ensure that the law was applied properly to the issue presented in the case

Criminal and Civil Law (355)

Criminal Law – codes of behavior related to the protection of property and individual safety

Crimes are graded as felonies, misdemeanors, or offenses according to their severity
Assumes society is the victim
Traditionally, purview of the states (new federal criminal laws are changing that)
Government is always the plaintiff

Civil Law – codes of behavior related to business and contractual relationships between groups and individuals

Not a threat to society at large
Lawsuits filed to recover something of value
Routinely settled out of court
Plaintiff / petitioner brings charges against the defendant / respondent
Government may bring civil charges against someone on behalf of a certain group of citizens

The Federal Court System (357)

Federal district courts, circuit court of appeals, and the Sup Court are called the constitutional (or Article III) courts

Federal courts specifically created by the Constitution or Congress pursuant to its authority in Article III
Presiding judges nominated by president; serve lifelong terms

Legislative Courts – courts established by Congress for specialized purposes, such as the Court of Military Appeals

District Courts (357)

Created by the Judiciary Act of 1789
2003 – 94 district courts staffed by 655 judges assisted by 300 retired judges who hear cases on a limited basis
Generally, cases heard in federal district courts by a single judge (w/ or w/o jury) fall into one of following categories

Federal government as a party
Federal question based on a claim under the Constitution, a treaty, or a federal statute

Called federal question jurisdiction and it can involve criminal or civil law

Civil suits in which citizens are from different states, and the amount of money at issue is more than $75,000

Grown tremendously since 1789
Each federal judicial district has a U.S. attorney who is nominated by the president and approved by the Senate

The Courts of Appeals (359)

Losing party in a federal district can appeal to US courts of appeal

11 numbered courts (11^th US Circuit Court of Appeals) and two others
DC Court of Appeals – handles federal regulatory commissions and agencies (SEC, etc); 2^nd most important court
US Court of Appeals for the Federal Circuit – deals with patents and contract / financial claims vs. fed gov

167 active and 80 senior judges staff these courts
Case are decided by rotating 3-judge panels

Panels makeup include active, visiting (district), and retired judges
All three may sit together (en banc) to decide a case (majority wins)

90% of cases are appealed civil and criminal cases (the other 10% from admin agencies)
No automatic right to appeal to Supreme Court

Petition must be submitted to the Supreme Court
Few cases heard

Court of Appeals – in general, try to correct errors of law and procedure

Hear no new testimony
Written arguments (briefs) submitted and oral argument presented
Decisions binding on district courts on the Court of Appeals

Supreme Court decisions set national precedents
Stare decisis – “let the decision stand” (Latin); reliance on past court decisions to make new ones
Stare decisis is not always followed; sometimes new precedents are set

The Supreme Court (361)

Final interpreter of the Constitution
Ensures uniform interpretation, resolves conflicts among states, and maintains national supremacy
8 justices + 1 chief justice – nominated by the President

There have been 108 justices since it was established and 15 chief justices

Chief Justice responsibilities include: preside over public sessions, conduct conferences, assign opinion writing (unless he is in a minority on a decision)
Customarily swears in the Pres and VP
400 staff for the Supreme Court

How Federal Court Judges are Selected (361)

No list of qualifications for federal judges in the Constitution

Framers wary of requiring law school

Make the court appear elitist
Few law schools in the US (most became attorneys through clerkship, etc)

President appoints federal judges; usually members of the Pres party routed through Senators offices to the Pres

Who Are Federal Judges? (364)

Usually have some experience as a prosecutor or judge in state courts or some political involvement
Most recent nominees have had judicial experience

Appointments to the US Supreme Court (365)

Very political decision
President’s ability to achieve objectives partially rooted in judicial appointments
Appointees do not always vote as predictably as their appointers hoped
1^st Chief Justice – John Jay

Nomination Criteria (Six Criteria) (367)

Competence – most have prior judicial experience
Ideology or Policy Preferences – most Pres want their political ideas modeled by their justice appointments

Strict Constitutionalist – person whose interpretation emphasizes the Framers’ intentions

Rewards – party activism and friends of the President sometimes rewarded with an appointment

· Pursuit of Political Support – Pres can use appointments to gain political support (Reagan promised to appoint women to get the women vote)

Religion – hardly considered in recent appointments; usually Protestant (only 9 Cath and 7 Jews); not a sign of ideology
Race and Gender – 2 blacks and 2 women have served on the Court; usually white males

The Supreme Court Confirmation Process (368)

Senate Judiciary Committee Investigates nominees, holds hearings, votes on recommendation of Senate action (reject or send to full Senate) – simple majority of the full senate needed to confirm

Investigation (369)

President sends list of potential nominees to the FBI

Since T. Roosevelt until Pres. Bush the American Bar Association (ABA) was asked to rate each nominee
Bush stopped that and asked a more conservative Federalist Society to rate his nominees

The Senate Judiciary Committee conducts investigations of formal nominees

Lengthy questionnaire requested detailing previous work, judicial opinions written, judicial philosophy, speeches, and all interviews given to the press

Lobbying by Interest Groups (369)

Usually special interest groups have not lobbied for specific individuals
They are getting more involved in district and Court of Appeals as those can be stepping stones to the Supreme Court

The Senate Committee Hearings and Senate Vote (370)

Most testimony on a nominee held in executive session (closed to the public) before 1929
Usually the nominee is not asked to testify himself
It is standard to ask probing questions and then declined to be answered on grounds that they may be raised in Court

The Supreme Court Today (371)

The Court is fairly private

Oral arguments are not televised
Deliberations done in secrecy

Deciding to Hear a Case (372)

As filings number rose to nearly 10,000 a year in recent years, the Court only decides less than 1% of cases
The number of decisions about constitutional issues has risen from very small % in the 30s to 42% in 2001-2002

The Supreme Court’s Jurisdiction (373)

Original jurisdiction is over disputes between states such as ownership of offshore oil, shifting river boundaries, etc

“Special Master” (a retired judge or expert) hears original jurisdiction cases for the Court in a district court
It is rare for more than 2-3 to be heard per year by the Court

Appellate jurisdiction – can be altered by Congress

Not to simply correct lower courts
Meant to hear cases of important issues of law or a “substantial federal question”
Most of these cases arrive on a petition for a writ of certiorari (request for the Court to order up lower Court’s records)
1/3 of filings to the Court involve criminal law

in forma pauperis (IFP) motions allow a poor or jailed person to appeal a case to the Court

Avoids expensive filings
Mostly filed by those upset by their sentence
Court issued new rules to deny “frivolous or malicious” motions
This new rule was a result of Michael Sindram who filed for MD to more speedily expunge his $35 speeding ticket

The Rule of Four (374)

Court controls its caseload unlike other courts
Controls through certiorari process … petitions for that must have two criteria:

Case must come through US Court of Appeals, 3-judge district court, or state court of last resort
Case must involve a federal question

All petitions reviewed by Chief Justices clerks and then sent to justices
Clerks and justice participate in “cert pool” and dead list most petition (30% make the discuss list)
A justice may remove a petition from the dead list
Writ of Certiorari is granted according to the Rule of Four (if four justices want to hear a case, it is heard)

The Role of Clerks (375)

Justices asked Congress to pay for a clerk as early as 1850
Denied until 1886 where each was allowed one clerk at $1,600 a year
Typically selected from the top of graduating classes of prestigious law schools
Tasks include searching for arcane facts to playing tennis and walking with justices

Most of their time spent researching material for cases, summarizing cases, and helping to write opinions

As more clerks have been allowed by Congress the amount of work done has increased

More cases heard
50% more opinions written and 300% longer after the 3^rd clerk added

Book by Edward Lazarus about his time as clerk to Justice Blackmun talked of the inner workings of the Court

Believes they give their “young, often ideological, clerks far too much power”

How Does a Case Survive the Process? (375)

Federal gov is asking for review
Case involves a circuit court conflict
Case presents civil rights / liberties question
Case involves ideological or policy preferences of the justices
Case has significant political or social interest; indicated by amicus curiae* briefs by interest groups

“Friend of the court” – third party to a lawsuit who files a legal brief to influence the Court

The Federal Government (376)

Solicitor General has much influence on whether or not a case is heard

4^th-ranking member of the Dept. of Justice; handles all appeals on behalf of the US gov to Supreme Court
Referred to as the Court’s “ninth-and-a-half member”
Appears as an amicus curiae in more than 50% of cases heard by the Court
Court accepts 70-80% of cases where US Gov is petitioning (compared to 5% of all others)
Two conflicting roles: represent the President’s policy and represent broader US interests

Conflict Among the Circuits (376)

Justices see cases involving constitutional law in order to ensure consistency
Also allows them to overrule lower courts decisions that conflict with their ideological position

Interest Group Participation (377)

Interests groups or the government can file legal briefs asking for certiorari to be given or denied
Has a significant impact – more briefs generally increase results

Starting the Case (377)

Criminal defendants proceeding in forma pauperis are represented by an expert lawyer for pro bono (no fee)

An honor to represent someone in the Court

Progression towards a decision

Cases on the docket
Briefs submitted by both sides
Oral argument
Justices’ conference (case discussed, vote taken, opinion writing assigned)
Opinions drafted and circulated
Opinions released

Interest Groups

Help write briefs with info not always in major-party briefs
Assist in practice court sessions (lawyer makes case in front of law professors and other experts)

Oral Arguments (379)

Justices hear oral arguments from beginning of the term until early April
Heard from Monday through Wednesday for two weeks; then two weeks of recess taken
Oral argument usually limited to immediate parties and the Solicitor General
Begins at exactly 10AM when the Court Marshal calls “Oyez! Oyez! Oyez!”
Majority of attorneys given 30 minutes to present their case

Green light comes on to start; white is 5 min warning; red means the time is up

Important functions of oral argument

Allows a small portion of the public and media to observe
Assures lawyers that justices have heard their case
Forces lawyers to focus on important argument
Provides the Court with additional info and allows justices to highlight certain issues to other justices

The Conference and the Vote (379)

Closed session; once per week while hearing oral arguments
Starts with a round of handshaking
Least senior member keeps the door (fills requests documents, water, etc)
Chief Justice presides and makes the initial presentation of each case (significant power)
Each other justice, in order of seniority, then discuss the case
Initial vote taken; can be changed later

Writing Opinions (380)

Five Kinds of Opinions

Majority Opinion – reflects views of a majority; justifies the decision legally which becomes precedent
Concurring Opinion – agrees with the outcome but disagrees with the legal reasoning
Plurality Opinion – Attracts support of 3-4 justices; 1 may agree with decision, no legal reasoning majority; does not set precedent
Dissenting Opinion – disagree with the opinion of a majority or plurality
Per Curiam Opinion – unsigned opinion issued by the Court

Chief Justice (if he is in the majority only) or most senior member in the majority writes the opinion

Draft circulated to all members
Legal reasons for a position must be detailed
Informal negotiation takes place (word changes, other modifications – justices ask for these in return for their continued support of the majority opinion)

Other opinions circulate too
Clerks aid justices in writing opinions; often serve as intermediaries between justices and talk among themselves

How the Justices Vote (381)

Judicial Philosophy and Original Intent (381)

Judicial Restraint – decision making philosophy that says courts should allow other branches of gov’s decisions to stand regardless of a judge’s principles
Judicial Activism – A philosophy of judicial decision making that argues judges should use their power broadly to further justice, especially in the areas of equality and personal liberty

Activists believe judges should use power broadly to further justice

Brown v. Board of Education example of activism

Restraintists argue judges should be strict constructions

Should interpret the Constitution as it is written and intended
Refer to Roe v. Wade as an example of a failure of restraint

Precedent (383)

Precedent – stare decisis refers to adherence to previous Court’s decisions. Some judges feel it has less importance in constitutional cases, however, it was used to uphold Roe v. Wade

Extra-Legal Factors (383) – characteristics and attitudes that affect judicial decisions

Behavioral Characteristics – social background differences, religious values, education, earlier political and legal careers, and political party loyalties
Ideology – conservative and liberal ideologies
Attitudinal and Strategic Models – justices decide cases in light of the facts of the cases according to their personal preferences toward issues of public policy
Public Opinion – public opinion; activists periods generally corresponded to periods of social or economic crisis

Judicial Policy Making and Implementation (388)

Policy Making (388)

Courts make policy through their decisions
They can interpret a provision of a law differently
Over 100 federal laws overturned; over 140 Supreme Court decisions reversed by itself

Implementing Court Decisions (389)

Judicial Implementation – refers to how and whether judicial decisions are translated into actual public policies affecting more than the immediate parties to a lawsuit
Implementing Population –those responsible for carrying out a decision
Consumer Population – those directly affected by a decision

Effective Implementation requirements

1) Members of the implementing population must understand the original decision

2) Implementing population must actually follow Court policy

3) Consumer population must be aware of the rights a decision grants or denies them